Facts

The defendants, the proprietors of a medical preparation
called "The Carbolic Smoke Ball," issued an
advertisement in which they offered to pay 100 to any person who
contracted the influenza after having used one of their smoke
balls in a specified manner and for a specified period. The
plaintiff on the faith of the advertisement bought one of the
balls, and used it in the manner and for the period specified,
but nevertheless contracted the influenza:-

Held

Held, affirming the decision of Hawkins, J., that the above
facts established a contract by the defendants to pay the
plaintiff 100 in the event which had happened; that such contract
was neither a contract by way of wagering within 8 9 Vict. c.
109, nor a policy within 14 Geo. 3, c. 48, s. 2; and that the
plaintiff was entitled to recover.

The Full decision of the case

APPEAL from a decision of Hawkins, J.(2)

The defendants, who were the proprietors and vendors of a
medical preparation called "The Carbolic Smoke Ball,"
inserted in the Pall Mall Gazette of November 13, 1891, and in
other newspapers, the following advertisement: "100 reward
will be paid by the Carbolic Smoke Ball Company to any person who
contracts the increasing epidemic influenza, colds, or any
disease caused by taking cold, after having used the ball three
times daily for two weeks according to the printed directions
supplied with each ball. 1000 is deposited with the Alliance
Bank, Regent Street, shewing our sincerity in the matter.

"During the last epidemic of influenza many thousand
carbolic smoke balls were sold as preventives against this
disease, and in no ascertained case was the disease contracted by
those using the carbolic smoke ball.

"One carbolic smoke ball will last a family several
months, making it the cheapest remedy in the world at the price,
10, post free. The ball can be refilled at a cost of 5 Address,
Carbolic Smoke Ball Company, 27, Princes Street, Hanover Square,
London."

The plaintiff, a lady, on the faith of this advertisement,
bought one of the balls at a chemists, and used it as
directed, three times a day, from November 20, 1891, to January
17, 1892, when she was attacked by influenza. Hawkins, J., held
that she was entitled to recover the 100 The defendants appealed.

Finlay, Q.C., and T. Terrell, for the defendants. The facts
shew that there was no binding contract between the parties. The
case is not like Williams v. Carwardine (4 B. Ad. 621), where the
money was to become payable on the performance of certain acts by
the plaintiff; here the plaintiff could not by any act of her own
establish a claim, for, to establish her right to the money, it
was necessary that she should be attacked by influenza - an event
over which she had no control. The words express an intention,
but do not amount to a promise: Week v. Tibold. 1 Roll. Abr. 6
(M.). The present case is similar to Harris v. Nickerson. Law
Rep. 8 Q. B. 286. The advertisement is too vague to be the basis
of a contract; there is no limit as to time, and no means of
checking the use of the ball. Anyone who had influenza might come
forward and depose that he had used the ball for a fortnight, and
it would be impossible to disprove it. Guthing v. Lynn 2 B. Ad.
232 supports the view that the terms are too vague to make a
contract, there being no limit as to time, a person might claim
who took the influenza ten years after using the remedy. There is
no consideration moving from the plaintiff: Gerhard v. Bates 2 E.
B. 476. The present case differs from Denton v. Great Northern
Ry. Co. 5 E. B. 860, for there an overt act was done by the
plaintiff on the faith of a statement by the defendants. In order
to make a contract by fulfilment of a condition, there must
either be a communication of intention to accept the offer, or
there must be the performance of some overt act. The mere doing
an act in private will not be enough. This principle was laid
down by Lord Blackburn in Brogden v. Metropolitan Ry. Co. 2 App.
Cas. 666. The terms of the advertisement would enable a person
who stole the balls to claim the reward, though his using them
was no possible benefit to the defendants. At all events, the
advertisement should be held to apply only to persons who bought
directly from the defendants. But, if there be a contract at all,
it is a wagering contract, as being one where the liability
depends on an event beyond the control of the parties, and which
is therefore void under 8 9 Vict. c. 109. Or, if not, it is bad
under 14 Geo. 3, c. 48, s. 2, as being a policy of insurance on
the happening of an uncertain event, and not conforming with the
provisions of that section.

Dickens, Q.C., and W. B. Allen, for the plaintiff. [THE COURT
intimated that they required no argument as to the question
whether the contract was a wager or a policy of insurance.] The
advertisement clearly was an offer by the defendants; it was
published that it might be read and acted on, and they cannot be
heard to say that it was an empty boast, which they were under no
obligation to fulfil. The offer was duly accepted. An
advertisement was addressed to all the public - as soon as a
person does the act mentioned, there is a contract with him. It
is said that there must be a communication of the acceptance; but
the language of Lord Blackburn, in Brogden v. Metropolitan Ry.
Co. 2 App. Cas. 666, shews that merely doing the acts indicated
is an acceptance of the proposal. It never was intended that a
person proposing to use the smoke ball should go to the office
and obtain a repetition of the statements in the advertisement.
The defendants are endeavouring to introduce words into the
advertisement to the effect that the use of the preparation must
be with their privity or under their superintendence. Where an
offer is made to all the world, nothing can be imported beyond
the fulfilment of the conditions. Notice before the event cannot
be required; the advertisement is an offer made to any person who
fulfils the condition, as is explained in Spencer v. Harding Law
Rep. 5 C. P. 561. Williams v. Carwardine 4 B. Ad. 621 shews
strongly that notice to the person making the offer is not
necessary. The promise is to the person who does an act, not to
the person who says he is going to do it and then does it. As to
notice after the event, it could have no effect, and the present
case is within the language of Lord Blackburn in Brogden v.
Metropolitan Ry. Co. 2 App. Cas. 666. It is urged that the terms
are too vague and uncertain to make a contract; but, as regards
parties, there is no more uncertainty than in all other cases of
this description. It is said, too, that the promise might apply
to a person who stole any one of the balls. But it is clear that
only a person who lawfully acquired the preparation could claim
the benefit of the advertisement. It is also urged that the terms
should be held to apply only to persons who bought directly from
the defendants; but that is not the import of the words, and
there is no reason for implying such a limitation, an increased
sale being a benefit to the defendants, though effected through a
middleman, and the use of the balls must be presumed to serve as
an advertisement and increase the sale. As to the want of
restriction as to time, there are several possible constructions
of the terms; they may mean that, after you have used it for a
fortnight, you will be safe so long as you go on using it, or
that you will be safe during the prevalence of the epidemic. Or
the true view may be that a fortnights use will make a
person safe for a reasonable time.

Then as to the consideration. In Gerhard v. Bates 2 E. B. 476,
Lord Campbell never meant to say that if there was a direct
invitation to take shares, and shares were taken on the faith of
it, there was no consideration. The decision went on the form of
the declaration, which did not state that the contract extended
to future holders. The decision that there was no consideration
was qualified by the words "as between these parties,"
the plaintiff not having alleged himself to be a member of the
class to whom the promise was made.

Finlay, Q.C., in reply. There is no binding contract. The
money is payable on a persons taking influenza after having
used the ball for a fortnight, and the language would apply just
as well to a person who had used it for a fortnight before the
advertisement as to a person who used it on the faith of the
advertisement. The advertisement is merely an expression of
intention to pay 100 to a person who fulfils two conditions; but
it is not a request to do anything, and there is no more
consideration in using the ball than in contracting the
influenza. That a contract should be completed by a private act
is against the language of Lord Blackburn in Brogden v.
Metropolitan Ry. Co. 2 App. Cas. 692. The use of the ball at home
stands on the same level as the writing a letter which is kept in
the writers drawer. In Denton v. Great Northern Ry. Co. 5
E. B. 860 the fact was ascertained by a public, not a secret act.
The respondent relies on Williams v. Carwardine 4 B. Ad. 621, and
the other cases of that class; but there a service was done to
the advertiser. Here no service to the defendants was requested,
for it was no benefit to them that the balls should be used:
their interest was only that they should be sold. Those cases
also differ from the present in this important particular, that
in them the service was one which could only be performed by a
limited number of persons, so there was no difficulty in
ascertaining with whom the contract was made. It is said the
advertisement was not a legal contract, but a promise in honour,
which, if the defendants had been approached in a proper way,
they would have fulfilled. A request is as necessary in the case
of an executed consideration as of an executory one:

Lampleigh v. Braithwait 1 Sm. L. C. 9th ed. pp.
153, 157, 159; and here there was no request. Then as to the want
of limitation as to time, it is conceded that the defendants
cannot have meant to contract without some limit, and three
limitations have been suggested. The limitation "during the
prevalence of the epidemic" is inadmissible, for the
advertisement applies to colds as well as influenza. The
limitation "during use" is excluded by the language
"after having used." The third is, "within a
reasonable time," and that is probably what was intended;
but it cannot be deduced from the words; so the fair result is
that there was no legal contract at all.

per LINDLEY, L.J.

[The Lord Justice stated the facts, and proceeded:-] I will
begin by referring to two points which were raised in the Court
below. I refer to them simply for the purpose of dismissing them.
First, it is said no action will lie upon this contract because
it is a policy. You have only to look at the advertisement to
dismiss that suggestion. Then it was said that it is a bet.
Hawkins, J., came to the conclusion that nobody ever dreamt of a
bet, and that the transaction had nothing whatever in common with
a bet. I so entirely agree with him that I pass over this
contention also as not worth serious attention.

Then, what is left? The first observation I will make is that
we are not dealing with any inference of fact. We are dealing
with an express promise to pay 100 in certain events. Read the
advertisement how you will, and twist it about as you will, here
is a distinct promise expressed in language which is perfectly
unmistakable - "100 reward will be paid by the Carbolic
Smoke Ball Company to any person who contracts the iufluenza
after having used the ball three times daily for two weeks
according to the printed directions supplied with each
ball."

We must first consider whether this was intended to be a
promise at all, or whether it was a mere puff which meant
nothing. Was it a mere puff? My answer to that question is No,
and I base my answer upon this passage: "1000 is deposited
with the Alliance Bank, shewing our sincerity in the
matter." Now, for what was that money deposited or that
statement made except to negative the suggestion that this was a
mere puff and meant nothing at all? The deposit is called in aid
by the advertiser as proof of his sincerity in the matter - that
is, the sincerity of his promise to pay this 100 in the event
which he has specified. I say this for the purpose of giving
point to the observation that we are not inferring a promise;
there is the promise, as plain as words can make it.

Then it is contended that it is not binding. In the first
place, it is said that it is not made with anybody in particular.
Now that point is common to the words of this advertisement and
to the words of all other advertisements offering rewards. They
are offers to anybody who performs the conditions named in the
advertisement, and anybody who does perform the condition accepts
the offer. In point of law this advertisement is an offer to pay
100 to anybody who will perform these conditions, and the
performance of the conditions is the acceptance of the offer.
That rests upon a string of authorities, the earliest of which is
Williams v. Carwardine 4 B. Ad. 621, which has been followed by
many other decisions upon advertisements offering rewards.

But then it is said, "Supposing that the performance of
the conditions is an acceptance of the offer, that acceptance
ought to have been notified." Unquestionably, as a general
proposition, when an offer is made, it is necessary in order to
make a binding contract, not only that it should be accepted, but
that the acceptance should be notified. But is that so in cases
of this kind? I apprehend that they are an exception to that
rule, or, if not an exception, they are open to the observation
that the notification of the acceptance need not precede the
performance. This offer is a continuing offer. It was never
revoked, and if notice of acceptance is required - which I doubt
very much, for I rather think the true view is that which was
expressed and explained by Lord Blackburn in the case of Brogden
v. Metropolitan Ry. Co. 2 App. Cas. 666, 691 - if notice of
acceptance is required, the person who makes the offer gets the
notice of acceptance contemporaneously with his notice of the
performance of the condition. If he gets notice of the acceptance
before his offer is revoked, that in principle is all you want.
I, however, think that the true view, in a case of this kind, is
that the person who makes the over shews by his language and from
the nature of the transaction that he does not expect and does
not require notice of the acceptance apart from notice of the
performance.

We, therefore, find here all the elements which are necessary
to form a binding contract enforceable in point of law, subject
to two observations. First of all it is said that this
advertisement is so vague that you cannot really construe it as a
promise - that the vagueness of the language shews that a legal
promise was never intended or contemplated. The language is vague
and uncertain in some respects, and particularly in this, that
the 100 is to be paid to any person who contracts the increasing
epidemic after having used the balls three times daily for two
weeks. It is said, When are they to be used? According to the
language of the advertisement no time is fixed, and, construing
the offer most strongly against the person who has made it, one
might infer that any time was meant. I do not think that was
meant, and to hold the contrary would be pushing too far the
doctrine of taking language most strongly against the person
using it. I do not think that business people or reasonable
people would understand the words as meaning that if you took a
smoke ball and used it three times daily for two weeks you were
to be guaranteed against influenza for the rest of your life, and
I think it would be pushing the language of the advertisement too
far to construe it as meaning that. But if it does not mean that,
what does it mean? It is for the defendants to shew what it does
mean; and it strikes me that there are two, and possibly three,
reasonable constructions to be put on this advertisement, any one
of which will answer the purpose of the plaintiff.

Possibly it may be limited to persons catching the
"increasing epidemic" (that is, the then prevailing
epidemic), or any colds or diseases caused by taking cold, during
the prevalence of the increasing epidemic. That is one
suggestion; but it does not commend itself to me. Another
suggested meaning is that you are warranted free from catching
this epidemic, or colds or other diseases caused by taking cold,
whilst you are using this remedy after using it for two weeks. If
that is the meaning, the plaintiff is right, for she used the
remedy for two weeks and went on using it till she got the
epidemic. Another meaning, and the one which I rather prefer, is
that the reward is offered to any person who contracts the
epidemic or other disease within a reasonable time after having
used the smoke ball. Then it is asked, What is a reasonable time?
It has been suggested that there is no standard of
reasonableness; that it depends upon the reasonable time for a
germ to develop! I do not feel pressed by that. It strikes me
that a reasonable time may be ascertained in a business sense and
in a sense satisfactory to a lawyer, in this way; find out from a
chemist what the ingredients are; find out from a skilled
physician how long the effect of such ingredients on the system
could be reasonably expected to endure so as to protect a person
from an epidemic or cold, and in that way you will get a standard
to be laid before a jury, or a judge without a jury, by which
they might exercise their judgment as to what a reasonable time
would be. It strikes me, I confess, that the true construction of
this advertisement is that 100 will be paid to anybody who uses
this smoke ball three times daily for two weeks according to the
printed directions, and who gets the influenza or cold or other
diseases caused by taking cold within a reasonable time after so
using it; and if that is the true construction, it is enough for
the plaintiff.

I come now to the last point which I think requires attention
- that is, the consideration. It has been argued that this is
nudum pactum - that there is no consideration. We must apply to
that argument the usual legal tests. Let us see whether there is
no advantage to the defendants. It is said that the use of the
ball is no advantage to them, and that what benefits them is the
sale; and the case is put that a lot of these balls might be
stolen, and that it would be no advantage to the defendants if
the thief or other people used them. The answer to that, I think,
is as follows. It is quite obvious that in the view of the
advertisers a use by the public of their remedy, if they can only
get the public to have confidence enough to use it, will react
and produce a sale which is directly beneficial to them.
Therefore, the advertisers get out of the use an advantage which
is enough to constitute a consideration.

But there is another view. Does not the person who acts upon
this advertisement and accepts the offer put himself to some
inconvenience at the request of the defendants? Is it nothing to
use this ball three times daily for two weeks according to the
directions at the request of the advertiser? Is that to go for
nothing? It appears to me that there is a distinct inconvenience,
not to say a detriment, to any person who so uses the smoke ball.
I am of opinion, therefore, that there is ample consideration for
the promise.

We were pressed upon this point with the case of Gerhard v.
Bates 2 E. B. 476, which was the case of a promoter of companies
who had promised the bearers of share warrants that they should
have dividends for so many years, and the promise as alleged was
held not to shew any consideration. Lord Campbells judgment
when you come to examine it is open to the explanation, that the
real point in that case was that the promise, if any, was to the
original bearer and not to the plaintiff, and that as the
plaintiff was not suing in the name of the original bearer there
was no contract with him. Then Lord Campbell goes on to enforce
that view by shewing that there was no consideration shewn for
the promise to him. I cannot help thinking that Lord
Campbells observations would have been very different if
the plaintiff in that action had been an original bearer, or if
the declaration had gone on to shew what a société anonyme was,
and had alleged the promise to have been, not only to the first
bearer, but to anybody who should become the bearer. There was no
such allegation, and the Court said, in the absence of such
allegation, they did not know (judicially, of course) what a
société anonyme was, and, therefore, there was no
consideration. But in the present case, for the reasons I have
given, I cannot see the slightest difficulty in coming to the
conclusion that there is consideration.

It appears to me, therefore, that the defendants must perform
their promise, and, if they have been so unwary as to expose
themselves to a great many actions, so much the worse for them.

per BOWEN, L.J.

I am of the same opinion. We were asked to say that this
document was a contract too vague to be enforced.

The first observation which arises is that the document itself
is not a contract at all, it is only an offer made to the public.

The defendants contend next, that it is an offer the terms of
which are too vague to be treated as a definite offer, inasmuch
as there is no limit of time fixed for the catching of the
influenza, and it cannot be supposed that the advertisers
seriously meant to promise to pay money to every person who
catches the influenza at any time after the inhaling of the smoke
ball. It was urged also, that if you look at this document you
will find much vagueness as to the persons with whom the contract
was intended to be made - that, in the first place, its terms are
wide enough to include persons who may have used the smoke ball
before the advertisement was issued; at all events, that it is an
offer to the world in general, and, also, that it is unreasonable
to suppose it to be a definite offer, because nobody in their
senses would contract themselves out of the opportunity of
checking the experiment which was going to be made at their own
expense. It is also contended that the advertisement is rather in
the nature of a puff or a proclamation than a promise or offer
intended to mature into a contract when accepted. But the main
point seems to be that the vagueness of the document shews that
no contract whatever was intended. It seems to me that in order
to arrive at a right conclusion we must read this advertisement
in its plain meaning, as the public would understand it. It was
intended to be issued to the public and to be read by the public.
How would an ordinary person reading this document construe it?

It was intended unquestionably to have some effect, and I
think the effect which it was intended to have, was to make
people use the smoke ball, because the suggestions and
allegations which it contains are directed immediately to the use
of the smoke ball as distinct from the purchase of it. It did not
follow that the smoke ball was to be purchased from the
defendants directly, or even from agents of theirs directly. The
intention was that the circulation of the smoke ball should be
promoted, and that the use of it should be increased. The
advertisement begins by saying that a reward will be paid by the
Carbolic Smoke Ball Company to any person who contracts the
increasing epidemic after using the ball. It has been said that
the words do not apply only to persons who contract the epidemic
after the publication of the advertisement, but include persons
who had previously contracted the influenza. I cannot so read the
advertisement. It is written in colloquial and popular language,
and I think that it is equivalent to this: "100 will be paid
to any person who shall contract the increasing epidemic after
having used the carbolic smoke ball three times daily for two
weeks." And it seems to me that the way in which the public
would read it would be this, that if anybody, after the
advertisement was published, used three times daily for two weeks
the carbolic smoke ball, and then caught cold, he would be
entitled to the reward. Then again it was said: "How long is
this protection to endure? Is it to go on for ever, or for what
limit of time?" I think that there are two constructions of
this document, each of which is good sense, and each of which
seems to me to satisfy the exigencies of the present action. It
may mean that the protection is warranted to last during the
epidemic, and it was during the epidemic that the plaintiff
contracted the disease. I think, more probably, it means that the
smoke ball will be a protection while it is in use. That seems to
me the way in which an ordinary person would understand an
advertisement about medicine, and about a specific against
influenza. It could not be supposed that after you have left off
using it you are still to be protected for ever, as if there was
to be a stamp set upon your forehead that you were never to catch
influenza because you had once used the carbolic smoke ball. I
think the immunity is to last during the use of the ball. That is
the way in which I should naturally read it, and it seems to me
that the subsequent language of the advertisement supports that
construction. It says: "During the last epidemic of
influenza many thousand carbolic smoke balls were sold, and in no
ascertained case was the disease contracted by those using"
(not "who had used") "the carbolic smoke
ball," and it concludes with saying that one smoke ball will
last a family several months (which imports that it is to be
efficacious while it is being used), and that the ball can be
refilled at a cost of 5 I, therefore, have myself no hesitation
in saying that I think, on the construction of this
advertisement, the protection was to enure during the time that
the carbolic smoke ball was being used. My brother, the Lord
Justice who preceded me, thinks that the contract would be
sufficiently definite if you were to read it in the sense that
the protection was to be warranted during a reasonable period
after use. I have some difficulty myself on that point; but it is
not necessary for me to consider it further, because the disease
here was contracted during the use of the carbolic smoke ball.

Was it intended that the 100 should, if the conditions were
fulfilled, be paid? The advertisement says that 1000 is lodged at
the bank for the purpose. Therefore, it cannot be said that the
statement that 100 would be paid was intended to be a mere puff.
I think it was intended to be understood by the public as an
offer which was to be acted upon.

But it was said there was no check on the part of the persons
who issued the advertisement, and that it would be an insensate
thing to promise 100 to a person who used the smoke ball unless
you could check or superintend his manner of using it. The answer
to that argument seems to me to be that if a person chooses to
make extravagant promises of this kind he probably does so
because it pays him to make them, and, if he has made them, the
extravagance of the promises is no reason in law why he should
not be bound by them.

It was also said that the contract is made with all the world
- that is, with everybody; and that you cannot contract with
everybody. It is not a contract made with all the world. There is
the fallacy of the argument. It is an offer made to all the
world; and why should not an offer be made to all the world which
is to ripen into a contract with anybody who comes forward and
performs the condition? It is an offer to become liable to any
one who, before it is retracted, performs the condition, and,
although the offer is made to the world, the contract is made
with that limited portion of the public who come forward and
perform the condition on the faith of the advertisement. It is
not like cases in which you offer to negotiate, or you issue
advertisements that you have got a stock of books to sell, or
houses to let, in which case there is no offer to be bound by any
contract. Such advertisements are offers to negotiate - offers to
receive offers - offers to chaffer, as, I think, some learned
judge in one of the cases has said. If this is an offer to be
bound, then it is a contract the moment the person fulfils the
condition.

That seems to me to be sense, and it is also the ground on
which all these advertisement cases have been decided during the
century; and it cannot be put better than in Willes, J.s,
judgment in Spencer v. Harding Law Rep. 5 C. P. 561, 563.
"In the advertisement cases," he says, "there
never was any doubt that the advertisement amounted to a promise
to pay the money to the person who first gave information. The
difficulty suggested was that it was a contract with all the
world. But that, of course, was soon overruled. It was an offer
to become liable to any person who before the offer should be
retracted should happen to be the person to fulfil the contract,
of which the advertisement was an offer or tender. That is not
the sort of difficulty which presents itself here. If the
circular had gone on, and we undertake to sell to the
highest bidder, the reward cases would have applied, and
there would have been a good contract in respect of the
persons." As soon as the highest bidder presented himself,
says Willes, J., the person who was to hold the vinculum juris on
the other side of the contract was ascertained, and it became
settled.

Then it was said that there was no notification of the
acceptance of the contract. One cannot doubt that, as an ordinary
rule of law, an acceptance of an offer made ought to be notified
to the person who makes the offer, in order that the two minds
may come together. Unless this is done the two minds may be
apart, and there is not that consensus which is necessary
according to the English law - I say nothing about the laws of
other countries - to make a contract. But there is this clear
gloss to be made upon that doctrine, that as notification of
acceptance is required for the benefit of the person who makes
the offer, the person who makes the offer may dispense with
notice to himself if he thinks it desirable to do so, and I
suppose there can be no doubt that where a person in an offer
made by him to another person, expressly or impliedly intimates a
particular mode of acceptance as sufficient to make the bargain
binding, it is only necessary for the other person to whom such
offer is made to follow the indicated method of acceptance; and
if the person making the offer, expressly or impliedly intimates
in his offer that it will be sufficient to act on the proposal
without communicating acceptance of it to himself, performance of
the condition is a sufficient acceptance without notification.

That seems to me to be the principle which lies at the bottom
of the acceptance cases, of which two instances are the
well-known judgment of Mellish, L.J., in Harriss Case Law
Rep. 7 Ch. 587, and the very instructive judgment of Lord
Blackburn in Brogden v. Metropolitan Ry. Co. 2 App. Cas. 666,
691, in which he appears to me to take exactly the line I have
indicated.

Now, if that is the law, how are we to find out whether the
person who makes the offer does intimate that notification of
acceptance will not be necessary in order to constitute a binding
bargain? In many cases you look to the offer itself. In many
cases you extract from the character of the transaction that
notification is not required, and in the advertisement cases it
seems to me to follow as an inference to be drawn from the
transaction itself that a person is not to notify his acceptance
of the offer before he performs the condition, but that if he
performs the condition notification is dispensed with. It seems
to me that from the point of view of common sense no other idea
could be entertained. If I advertise to the world that my dog is
lost, and that anybody who brings the dog to a particular place
will be paid some money, are all the police or other persons
whose business it is to find lost dogs to be expected to sit down
and write me a note saying that they have accepted my proposal?
Why, of course, they at once look after the dog, and as soon as
they find the dog they have performed the condition. The essence
of the transaction is that the dog should be found, and it is not
necessary under such circumstances, as it seems to me, that in
order to make the contract binding there should be any
notification of acceptance. It follows from the nature of the
thing that the performance of the condition is sufficient
acceptance without the notification of it, and a person who makes
an offer in an advertisement of that kind makes an offer which
must be read by the light of that common sense reflection. He
does, therefore, in his offer impliedly indicate that he does not
require notification of the acceptance of the offer.

A further argument for the defendants was that this was a
nudum pactum - that there was no consideration for the promise -
that taking the influenza was only a condition, and that the
using the smoke ball was only a condition, and that there was no
consideration at all; in fact, that there was no request, express
or implied, to use the smoke ball. Now, I will not enter into an
elaborate discussion upon the law as to requests in this kind of
contracts. I will simply refer to Victors v. Davies 12 M. W. 758
and Serjeant Mannings note to Fisher v. Pyne 1 M. G. 265,
which everybody ought to read who wishes to embark in this
controversy. The short answer, to abstain from academical
discussion, is, it seems to me, that there is here a request to
use involved in the offer. Then as to the alleged want of
consideration. The definition of "consideration" given
in Selwyns Nisi Prius, 8th ed. p. 47, which is
cited and adopted by Tindal, C.J., in the case of Laythoarp v.
Bryant 3 Scott, 238, 250, is this: "Any act of the plaintiff
from which the defendant derives a benefit or advantage, or any
labour, detriment, or inconvenience sustained by the plaintiff,
provided such act is performed or such inconvenience suffered by
the plaintiff, with the consent, either express or implied, of
the defendant." Can it be said here that if the person who
reads this advertisement applies thrice daily, for such time as
may seem to him tolerable, the carbolic smoke ball to his
nostrils for a whole fortnight, he is doing nothing at all - that
it is a mere act which is not to count towards consideration to
support a promise (for the law does not require us to measure the
adequacy of the consideration). Inconvenience sustained by one
party at the request of the other is enough to create a
consideration. I think, therefore, that it is consideration
enough that the plaintiff took the trouble of using the smoke
ball. But I think also that the defendants received a benefit
from this user, for the use of the smoke ball was contemplated by
the defendants as being indirectly a benefit to them, because the
use of the smoke balls would promote their sale.

Then we were pressed with Gerhard v. Bates 2 E. B. 476. In
Gerhard v. Bates 2 E. B. 476, which arose upon demurrer, the
point upon which the action failed was that the plaintiff did not
allege that the promise was made to the class of which alone the
plaintiff was a member, and that therefore there was no privity
between the plaintiffs and the defendant. Then Lord Campbell went
on to give a second reason. If his first reason was not enough,
and the plaintiff and the defendant there had come together as
contracting parties and the only question was consideration, it
seems to me Lord Campbells reasoning would not have been
sound. It is only to be supported by reading it as an additional
reason for thinking that they had not come into the relation of
contracting parties; but, if so, the language was superfluous.
The truth is, that if in that case you had found a contract
between the parties there would have been no difficulty about
consideration; but you could not find such a contract. Here, in
the same way, if you once make up your mind that there was a
promise made to this lady who is the plaintiff, as one of the
public - a promise made to her that if she used the smoke ball
three times daily for a fortnight and got the influenza, she
should have 100, it seems to me that her using the smoke ball was
sufficient consideration. I cannot picture to myself the view of
the law on which the contrary could be held when you have once
found who are the contracting parties. If I say to a person,
"If you use such and such a medicine for a week I will give
you 5," and he uses it, there is ample consideration for the
promise.

per A. L. SMITH, L.J.

The first point in this case is, whether the defendants
advertisement which appeared in the Pall Mall Gazette was an
offer which, when accepted and its conditions performed,
constituted a promise to pay, assuming there was good
consideration to uphold that promise, or whether it was only a
puff from which no promise could be implied, or, as put by Mr.
Finlay, a mere statement by the defendants of the confidence they
entertained in the efficacy of their remedy. Or as I might put it
in the words of Lord Campbell in Denton v. Great Northern Ry. Co.
5 E. B. 860, whether this advertisement was mere waste paper.That
is the first matter to be determined. It seems to me that this
advertisement reads as follows: "100 reward will be paid by
the Carbolic Smoke Ball Company to any person who after having
used the ball three times daily for two weeks according to the
printed directions supplied with such ball contracts the
increasing epidemic influenza, colds, or any diseases caused by
taking cold. The ball will last a family several months, and can
be refilled at a cost of 5" If I may paraphrase it, it means
this: "If you" - that is one of the public as yet not
ascertained, but who, as Lindley and Bowen, L.JJ., have pointed
out, will be ascertained by the performing the condition -
"will hereafter use my smoke ball three times daily for two
weeks according to my printed directions, I will pay you 100 if
you contract the influenza within the period mentioned in the
advertisement." Now, is there not a request there? It comes
to this: "In consideration of your buying my smoke ball, and
then using it as I prescribe, I promise that if you catch the
influenza within a certain time I will pay you 100" It must
not be forgotten that this advertisement states that as security
for what is being offered, and as proof of the sincerity of the
offer, 1000 is actually lodged at the bank wherewith to satisfy
any possible demands which might be made in the event of the
conditions contained therein being fulfilled and a person
catching the epidemic so as to entitle him to the 100 How can it
be said that such a statement as that embodied only a mere
expression of confidence in the wares which the defendants had to
sell? I cannot read the advertisement in any such way. In my
judgment, the advertisement was an offer intended to be acted
upon, and when accepted and the conditions performed constituted
a binding promise on which an action would lie, assuming there
was consideration for that promise. The defendants have contended
that it was a promise in honour or an agreement or a contract in
honour - whatever that may mean. I understand that if there is no
consideration for a promise, it may be a promise in honour, or,
as we should call it, a promise without consideration and nudum
pactum; but if anything else is meant, I do not understand it. I
do not understand what a bargain or a promise or an agreement in
honour is unless it is one on which an action cannot be brought
because it is nudum pactum, and about nudum pactum I will say a
word in a moment.

In my judgment, therefore, this first point fails, and this
was an offer intended to be acted upon, and, when acted upon and
the conditions performed, constituted a promise to pay.

In the next place, it was said that the promise was too wide,
because there is no limit of time within which the person has to
catch the epidemic. There are three possible limits of time to
this contract. The first is, catching the epidemic during its
continuance; the second is, catching the influenza during the
time you are using the ball; the third is, catching the influenza
within a reasonable time after the expiration of the two weeks
during which you have used the ball three times daily. It is not
necessary to say which is the correct construction of this
contract, for no question arises thereon. Whichever is the true
construction, there is sufficient limit of time so as not to make
the contract too vague on that account.

Then it was argued, that if the advertisement constituted an
offer which might culminate in a contract if it was accepted, and
its conditions performed, yet it was not accepted by the
plaintiff in the manner contemplated, and that the offer
contemplated was such that notice of the acceptance had to be
given by the party using the carbolic ball to the defendants
before user, so that the defendants might be at liberty to
superintend the experiment. All I can say is, that there is no
such clause in the advertisement, and that, in my judgment, no
such clause can be read into it; and I entirely agree with what
has fallen from my Brothers, that this is one of those cases in
which a performance of the condition by using these smoke balls
for two weeks three times a day is an acceptance of the offer.

It was then said there was no person named in the
advertisement with whom any contract was made. That, I suppose,
has taken place in every case in which actions on advertisements
have been maintained, from the time of Williams v. Carwardine 4
B. Ad. 621, and before that, down to the present day. I have
nothing to add to what has been said on that subject, except that
a person becomes a persona designata and able to sue, when he
performs the conditions mentioned in the advertisement.

Lastly, it was said that there was no consideration, and that
it was nudum pactum. There are two considerations here. One is
the consideration of the inconvenience of having to use this
carbolic smoke ball for two weeks three times a day; and the
other more important consideration is the money gain likely to
accrue to the defendants by the enhanced sale of the smoke balls,
by reason of the plaintiffs user of them. There is ample
consideration to support this promise. I have only to add that as
regards the policy and the wagering points, in my judgment, there
is nothing in either of them.

Appeal dismissed.

Solicitors: J. Banks Pittman; Field Roscoe.

H. C. J.

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